This is the second (and final) part of the transcript of an Intelligence Squared U.S. debate, “Treat terrorists like enemy combatants, not criminals,” held in New York on September 14. The first part is here. The motion was proposed by former CIA director Gen. Michael Hayden and torture apologist Marc Thiessen, and opposed by Lt. Col. David Frakt, law professor, expert in the laws of war and the former military defense attorney for two Guantánamo prisoners, and Stephen Jones, the attorney who defended Oklahoma bomber — and U.S. terrorist — Timothy McVeigh.

As I explained in the first part, I’m delighted to note that, when the audience voted before the debate, 33 percent supported the motion, 32 percent opposed it, and 35 percent were undecided, but that, by the end of the evening, Lt. Col. Frakt and Stephen Jones had swayed a larger number of undecided voters, so that 39 percent supported the motion, 55 percent opposed it, and 6 percent were undecided. If only lawmakers, media pundits and the wider U.S. public could be persuaded in a similar manner …

As I also explained, I have presented the transcript largely as it appears on the Intelligence Squared website, but on occasion I have added my own editorial comments, addressing points that were not picked up on by the speakers, or (largely in Thiessen’s case) comments that were clear distortions of the truth.

“Treat terrorists like enemy combatants, not criminals”
An Intelligence Squared U.S. Debate, New York, September 14, 2010

John Donvan: I’d like to go to the audience for your questions now. […]

Male Speaker: Yes, I think that something has been left somewhat clouded in the discussion, and that is that we’ve debated here and heard a lot of pros and cons about the way that they’re treated as criminals versus enemy combatants. What I haven’t heard is a clear definition of what the treatment should be when it is declared that they are enemy combatants. In other words, are we looking at recourse under military commissions? Are we looking at a suspension of some of those concerns because of national security? I think for a lot of people, we’re uneasy as to the definition behind enemy combatant and the set of prerogatives that would set in if that were to prevail, and we are leaving an open mind on that. So perhaps people can clarify that for us?

John Donvan: Thank you. Marc Thiessen, I’d like to go to Marc because you just wrote a whole book about this.

Marc Thiessen: Enemy combatants: When you capture someone who’s a member of al-Qaeda or the Taliban or who tries to set his underwear on fire on a Detroit airplane and blow up a plane over Detroit that could’ve killed hundreds of people — our position is that that’s an enemy combatant. And that person, when you take him into custody, the first words out of your mouth are not, you have the right to remain silent. Because this is the problem with the difference between our approaches and practice, is that they believe, because they are lawyers and this is the world they live in, that the purpose of interrogation is to obtain evidence for a criminal trial.

The criminal trial is a third order of interest for those who are involved with protecting the country. The first job is to get intelligence to stop another terrorist attack. So when, for example, the Christmas Day bomber is questioned for 50 minutes and then told he has the right to remain silent, you’re not going to get, even if he’s being incredibly cooperative, in 50 minutes you could not exhaust all the information. But the thing is that if you were trying to — if you take the law enforcement approach to interrogation, patience is a virtue. You are trying to get evidence and you can take as much time as you want, build a relationship with the guy, you try to coerce them in an interview, try to co-opt them into giving you information, fool them into giving information. If you are trying to stop a terrorist attack, patience is deadly.

This guy — when the Christmas Day bomber was captured, he was supposed to be vaporized on that plane. As soon as al-Qaeda found out that he was alive and in U.S. custody, they started covering his tracks. They started shutting down e-mail addresses, they started shutting down camps where he was training, they started hiding operatives who he knows about, they started hiding safe houses and closing them down. So he takes three weeks to do — and he’s even trained in interrogation resistance — to buy time and use the legal system in order to buy his [unintelligible] fellows on the outside time. We need to get that information quickly.

David Frakt: Okay. I’d like to respond to that.

John Donvan: I just wanted David Frakt to respond to this.

Male Speaker: A little bit of an unclarity and that is that even after a lawyer is assigned, I believe that interrogation can proceed. Isn’t that correct?

Marc Thiessen: But he doesn’t have to answer any questions. Once he has a lawyer, he’s not going to answer any questions.

Male Speaker: I will tell you there were many people who did cooperate —

Marc Thiessen: No, first of all, I will tell you who says this: Eric Holder. Eric Holder, after John Walker Lindh was captured in Afghanistan and brought over here, Eric Holder was being interviewed on CNN in 2002 and they said, can they get tough with him in the interrogation and he said, well he’s not going to tell you anything now that he has a lawyer and is in America.

Stephen Jones: Speaking from experience, people with lawyers confess all the time. They confess even though they’ve been given their Miranda rights. So maybe you think Osama bin Laden, to use the most extreme example, is not familiar with the rule of Miranda? I mean, most of those of us who practice law daily in the courts of law know that many police detectives are just as skilled as the people you want to use enhanced detection, that the purpose of interrogation is not prosecution, it’s to gather evidence frequently on an intelligence basis whether it’s financial crimes or drug crimes, and that many thousands of defendants who are told they have the right to remain silent, spill their guts.

David Frakt: I’d like to get back to the question which was a good one and given that this was a motion that was proposed by our opponents, I thought that they would try to define it. But actually what we’re doing is constantly shifting back and forth because they say, well, we’re at war, so it’s enemy combatants. We acknowledge in the active battlefield and active theater of conflict in Iraq, in Afghanistan, those who are actively fighting against us are enemy combatants and can be treated under the laws of war. Now where it gets murky is when we’re talking about people here in the United States. And the prior administration’s policies were to treat Americans, American citizens as enemy combatants, American citizens were locked up in military prisons for years and before that case could ever go to the Supreme Court, they decided to drop it. So we have to differentiate between an active battlefield and what’s going on domestically.

Now Mr. Thiessen says that membership, if we pick up someone who’s a member of Taliban or al-Qaeda — I mean, these people do not carry membership cards. And we also have to distinguish between al-Qaeda and Taliban. The Taliban is a fighting force in Afghanistan and Pakistan. They just want us to leave. They are not terrorists. They’re not launching international terrorist attacks. Al-Qaeda is. I would argue that the Taliban was essentially the lawful military government and military force of Afghanistan at the time we attacked and therefore was entitled to Geneva Convention status protection as prisoners of war. But we did not afford them that.

Another thing that’s important to talk about is when we say terrorist, what they’re really talking about are suspected terrorists, people that they believe may be terrorists. Now, if someone tries to light their underwear on fire in a plane, yes, you have a pretty good indication that they’re a terrorist. But it’s usually not that clear cut. It’s usually based on some intelligence from some source or method that we’re not allowed to know about that they suspect someone. And in that case, to simply lock that person up, incommunicado potentially for years, if I’m understanding what Marc is proposing, is problematic. And we have gotten a lot of the wrong people.

Now, yes, if we interrogate people — yes, people have information. We may eventually get it. But why limit it to terrorists? Why don’t we do that to every single person that’s suspected of any crime? Why not drug traffickers because —

John Donvan: We’ll come back to that because we’re going to keep going in circles on the same territory, and I want to move it. And I bet we do come back to it. In uniform, the third row. I believe you’re — are you part of the West Point contingent?

Female Speaker: I am, sir. I’m a judge advocate for the U.S. Army, currently assigned to the United States Military Academy, the department of law. I do teach Constitutional and military law. We have some work that put us here this evening. Let me clarify first: this comes in my personal capacity. I’m asking this question not anything to do with the army or West Point. I clearly acknowledge that you are more intelligent that I, that you have the access to information I never will. My question comes in the fact that I’m assuming, aside from you, sir, that maybe you’ve never been deployed.

Marc Thiessen: No, I have not.

Female Speaker: I’ve been to Iraq. I’ve been to Afghanistan. Without fail, every time I interacted with an Iraqi or an Afghan, their single question to me was this: How do you explain Guantánamo Bay? Let me ask you my question. My question is not whether we should treat them like enemy combatants or criminals, but whichever we decide, there are always consequences to a decision. And if you take it out and extract what — the implication this causes for those of us who are fighting these wars, who do know we are a nation at war, so in the next year as I leave for my third deployment, possibly, when I get out there, or as I’m teaching my cadets, this is the way we do things because we’re America, how do I justify us giving it the moral high ground?

John Donvan: And do you think we are?

Female Speaker: Absolutely. We can’t go around and champion ourselves as the land of the free and the just —

John Donvan: Michael Hayden.

Michael Hayden: Yeah. First of all, captain, thank you for your service. I’m puzzled. I understand the image of Guantánamo. And we had serious questions inside the Bush administration about Guantánamo. As David suggested, we took about two-thirds of the prison population out of Guantánamo, not as David suggested, because we thought they were innocent. We actually transferred them to third countries actually to kind of home of record with the assumption that they would then be held there or watched there so that they would no longer be a danger, all right? I guess if you believe we are at war and that these are enemy combatants, we’ve got to put them somewhere. I’m not wedded to Guantánamo. I understand the image issue. But our right to detain them, I think, is unarguable under the laws of armed conflict. And —

Female Speaker: — to be held for eight years without trial or with evidence against you?

Michael Hayden: No. Captain, I’m sorry. You’re the lawyer, and I’m not, all right? But nowhere does Geneva require us to try enemy combatants. I sat with — in my last capacity as head of CIA, I had multiple visits from the president of the International Red Cross as we were trying to get closer to some of the things they were suggesting to us. He never suggested we had to try anybody. They did have — as David knows, they have CSRTs, combatant status review tribunals, which is what happens within the military. It is the tradition of the military to ensure through this process, due process, that the individual you have is indeed the individual you believe them to be. I just don’t understand what of this enemy is unlawful. And the unlawful combatant or unprivileged belligerent is the new phraseology. What, does that give them rights that 6 million other prisoners of war we’ve held as a nation have not had? [Editor’s note: Gen. Hayden failed to acknowledge that the Combatant Status review tribunals at Guantánamo were dismissed, in detail, as a sham process designed to rubber-stamp the prisoners’ prior designation as “enemy combatants,” as Lt. Col.Stephen Abraham, who played a major part in the process, explained in 2007, in two court submissions, and in an interview here in 2008].

John Donvan: Marc Thiessen, do you want to join your partner on this one, because I think —

Marc Thiessen: I do want to, because I — I thank you also for your service, but I think my answer to you is what you say is you should defend the other people in uniform who serve proudly at Guantánamo and keep this country safe. The fact is that most of those people are asking those questions because of misstatements, mistruths and lies that have been spread about Guantánamo Bay.

John Donvan: You mean the Iraqis are misinformed.

Marc Thiessen: Iraqis, people around the world because people in — these allegations go out there and, as my old boss, Donald Rumsfeld used to say, the truth goes around the world 30 times before — lies go around the world 30 times before troops get their boots off. Every investigation into conduct at Guantánamo Bay has found these allegations of widespread abuse are false. Brigadier generals Schmidt and Furlow did a careful investigation [PDF]. No, quote, no evidence of torture or inhumane treatment at JCF Guantánamo. They’ve made the inspector general A.T. Church, who I interviewed for my book, and who said he expected to find widespread abuse at Guantánamo said that when he investigated, conducted hundreds of interviews, interviewed detainees, interviewed everybody who had been there. He said we can confidently state, based upon this investigation [PDF], we found nothing that would any way substantiate detainees’ allegations of torture or violent physical abuse at Guantánamo. Now, I’ll tell you something. We are also hearing from the other side that people there are the poor sheep herders and goat herders who have been wrapped up and taken to Guantánamo. The combat leadership of the Taliban today is made up of Guantánamo alumni. Just last week in Yemen, the Yemenis arrested a Guantánamo alumnus who was joining al-Qaeda in the Arabian peninsula. And the man who is one of the leaders of al-Qaeda in the Arabian Peninsula who sent the Christmas day bomber is a former Guantánamo inmate [Editor’s note: This man, a Saudi, was released by President Bush as part of a diplomatic deal with the Saudi government, against the advice of his own intelligence services].

These are dangerous, dangerous people. And even the Obama administration’s review found 95 percent of the people who are there right now are either leaders or fighters for al-Qaeda and the Taliban. [Editor’s Note: This description tends to skew the Guantánamo Review Task Force’s findings. What the Task Force stated was that roughly 10 percent of the prisoners (24 in total) were “Leaders, operatives, and facilitators involved in terrorist plots against US targets,” that roughly 20 percent (48 prisoners in total) were identified as “Others with significant organizational roles within al-Qaeda or associated terrorist organizations,” that less than 10 percent were “Taliban leaders and members of anti-Coalition groups,” that 5 percent did not fit into any category, and that the rest — over 55 percent — were “Low-level foreign fighters.” I should also add that the Task Force’s analysis does not correspond with rulings made in the District Court in Washington D.C. on the prisoners’ habeas corpus petitions, where, to date, 38 out of 55 cases have been won by the prisoners, on some occasions evidently refuting the Task Force’s findings].

John Donvan: Marc, thank you.

John Donvan: David Frakt, do you want to respond? But I sort of feel the captain did your work for you on that question.

David Frakt: Well, I want to respond to a specific point made by Marc about these reports, investigations into detainee abuse at Guantánamo and the claim that they searched, and they didn’t find anything. He referenced the Church report, the Schmidt-Furlow report.

When I was representing Mohammed Jawad, a teenage boy from Afghanistan at Guantánamo, a prosecutor by the name of Lieutenant Colonel Darrel Vandeveld turned over some discovery materials to me that showed that my then, at that point, 16 or 17-year-old client had been subjected to what was called the frequent flyer sleep deprivation program. And according to the Schmidt-Furlow report, they had discovered that there had been a frequent flyer sleep deprivation program. And during this program, detainees were moved, and in the case of my client, 112 times from cell to cell during a two-week period. He was moved constantly back and forth in an effort to deprive him of sleep.

According to the Schmidt-Furlow report, this program had been stopped after a complaint by the FBI, it had been stopped in March of 2004. The only problem with that was that my client had been subjected to the program in May of 2004. And so I asked Colonel Vandeveld to continue digging, and he found additional records that showed that this program continued for at least another year. And dozens of other people were subjected to it. In fact, we had the person who ran the program. There was a major, who was an intelligence officer in the army, who came to testify at Guantánamo in the hearing in which I was representing a detainee and said this was standard operating procedure. The generals knew about it. Everybody was vetted and approved. So these investigations were whitewashes. They missed widespread abuses. I tried to bring this to the attention of the Department of Defense. I filed a report of a violation of the Law of Armed Conflict, as is my duty to do as a military officer. What did they do? Nothing, no follow-up investigation, I was never contacted.

John Donvan: So we have a very basic disagreement about what we think is happening inside the walls of Guantánamo. You say that basically there have been very few undocumented violations and David is saying that these are whitewashed, that there’s reports that say that.

Marc Thiessen: I think that’s a shocking thing to say about Admiral Church and those people who are — you know, people who wore our uniform with honor. Hold on, no, you talked, now let me — This frequent flier program you referred to, where for someone who’s moved once every four hours roughly, two to four hours, what do you think these detainees in Guantánamo do all day? They’re not busting rocks. They’re not making license plates. They sleep. They read the Koran. They play foosball. They play soccer. They eat whenever they want, sleep whenever they want. This is not torture. There is frequent flier. You may not like it. But I’ll tell you something, people — interrogation, interrogation techniques, even interrogation techniques under the Geneva Convention people would find shocking if you’re not familiar with interrogation — interrogation is not supposed to be pleasant. And you have in the case of some of these people who are at Guantánamo, people who are senior al-Qaeda leaders, senior Taliban leaders who have intelligence about the possibility of planned attacks against the United States and they have the responsibility to get them within the rules of law, and they did it. And these investigations were conducted, they were open, and they found no evidence of widespread abuse.

David Frakt: And that’s because the senior al-Qaeda leaders were locked up in secret CIA ghost prisons in Eastern European countries and in Thailand and places that we were not allowed to know about, that’s where the worst abuses went on, but there were plenty of horrific abuses at Guantánamo —

John Donvan: Michael Hayden.

Michael Hayden: I’ll come back with a debate on interrogation techniques, just sign me up. To summarize the last statement, I believe the American armed forces are competent and capable of holding enemy combatants as prisoners of war consistent with the laws of armed conflict. Discussion about that point or distraction from the basic question we have in front of us today.

John Donvan: Another question from the audience? […]

Male Speaker: Kayvon Afshari, CBS News. I do want to come back to David Frakt’s fundamental point, and I’d like to get a response from Marc in particular. A lot of the guilt or innocence of these suspected enemy combatants is a lot more nebulous than that of Abdulmutallab, so I just want to know on a very practical level if we don’t go through the criminal justice system, how do we know if they are terrorists?

Marc Thiessen: First of all, it’s not about guilt. You don’t have to prove guilt. These are not criminal defendants. You have to have a reasonable belief that these people were captured in the war and that they are members of al-Qaeda or the Taliban and were conducting operations against us. The fact is, we have detained in the War on Terror well over 100,000 people. Only 800 made it to Guantánamo. Only 100 made it into the CIA program. So these are — we’re not just picking people up off the street and throwing them in Guantánamo. Were there some people that were sent there by accident, that we made a mistake? Our enemy doesn’t wear uniforms. They don’t follow a chain of command — it’s hard. There’s some mistakes made, absolutely, and we had a process in Guantánamo that was set up to review the evidence against them and to make sure that people who were not — didn’t belong there were sent back. But the reality is that we got — you know, if we — the left always wants to get this debate onto the topic of abuse. This is a debate about keeping this country safe with the exception of one of our debaters.

John Donvan: Michael Hayden.

Michael Hayden: What’s the judicial process you would use for killing the believed enemy combatant as opposed to capturing him?

John Donvan: Stephen Jones.

Stephen Jones: Well, I think, Marc, the problem that I have, and I think David is right, capturing people on the battlefield is different than arresting someone at Detroit Airport for committing or attempting to commit what is clearly a violation of the federal criminal law, when you can take that person consistent with the Constitution of the United States and Title 18, which is the Criminal Code, and try him other than in a federal criminal court according to the federal rules of criminal procedure and the federal rules of evidence, and to maintain that you can —

Marc Thiessen: You’re wrong.

Stephen Jones: Well, you’re wrong.

Marc Thiessen: No.

Stephen Jones: We don’t have a separate criminal justice system for people that commit crimes in the United States. And it isn’t a question mark of politics or the Left or the Right — or Bush versus Obama. It’s a question of the Constitution. It’s not political, it’s Constitutional and there’s one system of law in this country. Now I will concede that in a battlefield situation abroad or outside the United States, the line is blurry. But when you start saying that you’re going to arrest people and try them in a military tribunal for crimes committed in the United States against American citizens, I don’t think the American people will tolerate that.

John Donvan: We are now going to ask Marc Thiessen to respond to the point just made.

Marc Thiessen: First of all, Ex parte Quirin 1942, this is the Supreme Court: one who takes up arms against the United States in a foreign theater of war regardless of his position shall be regarded properly as an enemy combatant and treated as such. It doesn’t matter whether they’re a citizen or not. I would now assume that you now consider Franklin Roosevelt was a war criminal because the military commissions for the saboteurs who were captured here are unconstitutional as well. And on top of that, military commissions that have been held outside of the Article Three court going back to George Washington. I assume he’s not a war criminal either. But again, you’re completely focused on the criminal justice system. I don’t care if we put Khalid Sheikh Mohammed on trial or not when we capture him. When Khalid Sheikh Mohammed is captured, I want to know what his plans for the next attack are. My question to you is you’re focused on where he’s going to be tried. I want to find out what he knows. When Khalid Sheikh Mohammed was captured, if you were the one who was responsible for getting the information, in the case he’s captured, he’s killed 3000 people just down the street from here. He admits to you that he has plans for new attacks in motion. Does Khalid Sheikh Mohammed have the right to remain silent?

Stephen Jones: Well of course he has the right to remain silent. The only difference between your position and mine is that you don’t think that he should be told he has the right to remain silent and I think it’s beside the point because of course he knows he has the right to remain silent.

Marc Thiessen: So you’re saying — let’s say we captured Khalid Sheikh Mohammed before the 9/11 attacks. Put aside the litany of attacks that he had in play. You would have allowed 9/11 to go on rather that to get him to give the information that he had.

Stephen Jones: Now Marc, let’s don’t defend the indefensible here.

Marc Thiessen: It’s not the indefensible. Khalid Sheikh Mohammed killed 3000 people in this country. He had information, a plot to blow up the Library Tower in Los Angeles, blow up a marine camp in Djibouti, to blow up the consulate in Karachi. These are real attacks. To commit, repeat 9/11 in London.

Stephen Jones: Well that may be true but I don’t want to take The Weekly Standard’s word for it or frankly your book. If all of that is true, then it can be presented to an American jury. An American jury will convict him and give him the death penalty.

John Donvan: What if the clock is ticking in the situation that Marc’s just described? You believe he knows about something that’s about to happen and we’re five minutes away. Would it make a difference?

Stephen Jones: There’s a movie about that and I think that’s an over-dramatization of the issue. Those who look for a way to shortcut the system always first bring forward the most extreme example of what could happen. But the truth of the matter is those extreme examples rarely exist. Where they do exist, I believe the intelligence community and the law enforcement community have on numerous occasions shown the ability much better than politicians to protect individual security or, for that matter, national security.

John Donvan: David Frakt, you wanted —

David Frakt: Yes. I mean the whole ticking time bomb scenario is really a red herring. First of all, police, in the situation where there is an urgent public safety emergency, are not required to give the Miranda warning. So — but if your question is, should we use torture in that situation? And that’s essentially what Marc is saying is that, you know, in order to prevent an attack, you have to be willing to do anything, whatever it takes. And that’s where we have a fundamental disagreement. If we captured Osama Bin Laden, I would not torture him. Is that possibly going to lead to an attack that might have been prevented? It might.

John Donvan: Are you okay with that?

David Frakt: I am okay with it because it would be a great tragedy. But it would be a greater tragedy to go down the road which we already went down of torturing, because that one attack may not be averted, but you are going to multiply the attacks for years to come because of the torture. And that is what we have done.

Michael Hayden: Again, I’ll come back and walk, if you like, a debate on a different subject but as the only one on stage who has actually had the question in front of him as to whether or not it —

John Donvan: Except, Michael, that your partner brought these issues to the table himself in his opening remarks in talk — in justifying and laying out several scenarios in which the actual methods did do it. I think they’re relevant. I don’t think it’s — it’s not a vote on that, but I think it’s germane to understanding what the motion means. And I’d like to see if Marc could respond to what was just said because this is where the rubber hit the road.

Michael Hayden: Well, actually, no. Let me finish, because the rubber hit the road on my car, all right? I’m the one who has to make the decision, okay? These are not easy decisions. There are conflicting values. There are moral responsibilities galore, okay? No one should trivialize it, and no one should throw bumper stickers at the difficulty of the decision people like me, people like Leon Panetta, have to make, all right?

But I come back to the fundamental question: the American armed forces, the American intelligence community are capable of holding people, consistent with the laws of armed conflict. I feel as if we have gone through the looking glass in the last 30 to 40 minutes as we try to take people who are armed enemy combatants — and David did not make the straw man that Iraq is okay to capture, it’s not okay to capture and keep enemy combatants in Brooklyn, okay? What about Mali? What about Djibouti, what about Yemen? What about the Horn of Africa? What about Pakistan? That is where the enemy is. That is where the enemy is mounting an attack against our citizens. They are enemy combatants. And as God is my judge, I will use the full authority that the law of armed conflict gives me as long as my president and my Congress has given me that authorization.

John Donvan: And your partner, Marc Thiessen.

Marc Thiessen: I would add to that to complete. We’re not going to have time to debate all of the interrogation techniques. They were not torture. And I can walk you through it if you really want to.

David Frakt: I’d rather not.

Marc Thiessen: Well, I’ll tell you something. You said something, and this is — you’re sort of dismissive of the threat in a very sort of disturbing way. You said well, yeah, I’ve let the — you basically admitted you had let the attack happen and treat him as a criminal rather than an enemy combatant. You know, you said earlier, when — about my introductory remark, two little terrorist networks. Well, you know what? One of those two little terrorist networks killed 3,000 people down the street from here, 19 men with box cutters. This is a real threat. These people are out there every day trying to kill us. And I think it’s really shameful to dismiss them as two little terrorist networks. Khalid Sheikh Mohammed was captured in Pakistan. You said unless he’s in Iraq or Afghanistan, he’s not an enemy combatant. So do you consider Khalid Sheikh Mohammed an enemy combatant, the mastermind of 9/11, the man who commanded the operation, the operational commander of al-Qaeda? Is he an enemy combatant, yes or no?

David Frakt: How do you know that he is the mastermind of 9/11? What —

Marc Thiessen: Oh, my God.

David Frakt: He has not been put on trial. And you don’t want to put him on trial. And you are denying those 3,000 victims —

Marc Thiessen: I’m not denying them anything.

David Frakt: You are denying — you say it’s not important to have a trial. I say it is important to have a trial.

Marc Thiessen: It’s not the first priority.

David Frakt: It is important to establish the truth of what happened and for people to get some closure. And it’s important for these people to be punished. I do not in any way diminish the seriousness of 9/11. And I agree with General Hayden that these are difficult decisions. And I am not sure that I would want to be in the position he was in of having to make those.

But what I will tell you is that the oath that we take, that we both took as officers in the United States military, is to defend the Constitution of the United States. It is not to defend the people of the United States. Because what we are defending are our values and our history. And sometimes, yes, it may cost lives. But you cannot achieve perfect security. And when you try to, by making shortcuts, you ultimately diminish us as a country. And it does not serve us in the long run.

John Donvan: Yes from the — the blue jacket and white — blue shirt and dark blue Blazer. Yep. Your colleague is tapping you on the shoulder.

Male Speaker: My name is Les Shelton, and my question is that — comes from the fact that it seems that what was really most difficult is — what is the definition, operationally, of a person who is a terrorist? […] How can we be sure that a terrorist on a bus in Pakistan and the whole bus is grabbed because they know a terrorist is on the bus — And how do we understand, as people listening to all this, how we can feel comfortable with the shortcut because nobody wants their ass burned? And the fact of the matter is we need to feel a bit more — I need to feel a bit more comfortable about the selection process for applying these definitions is somehow rational. And I have to say that our legal system is one of the ways those things are done. But again, we have a group of people who say they’re experts. And they know these people are. But we have a bad history. That isn’t always the case.

John Donvan: Sir, can you cut to your question?

Male Speaker: The question is, how do we make this distinction so that all of us can feel more comfortable with what our government may be doing?

John Donvan: You mean the distinction: who are the terrorists and who is not?

Male Speaker: Yeah. You know, how to get the innocents off the bus.

John Donvan: How and who? I mean, there is also the question of who makes the distinction as well. Let’s take that to the side for the motion. Mike, go ahead.

Michael Hayden: It’s a process. It’s a rigorous process. I governed it while I was the director of CIA with regard to that portion of the war that CIA had responsibility for. To be clear, just being a terrorist doesn’t get much interest from us. The authorization we have from the Congress, the Authorization for Use of Military Force, is against al-Qaeda and its affiliates. So it’s not a global terrorist issue. We are at war with a select group of terrorists. President Obama has made that clear. The Congress has made that clear. President Bush has made that clear. We used the same criteria to capture an individual as a terrorist that we use on the battlefield to kill. It is visual: who is a terrorist? I am responding to the political processes of the American state. All three branches of government have said we are at war. I’m using the full authority given to me. I use it in the clearest conscience I have.

Are mistakes made on the battlefield? Killing, capturing? Of course, they are. What — you have very good men and women working very hard to apply absolute precision to their task. Now, I will admit that the processes of intelligence are a bit different than the processes of the judicial system. Again, as I mentioned in the one habeas case, we had to fold our tent and admit defeat because I could not, in conscience, tell the enemy combatant who the source of our information was. If I did that, I would quickly not have sources of information anywhere in the world. And so we had to make a serious tradeoff. That’s what I mean by putting this into a law enforcement template, rather than using a vigorous and consistent with the rule of law, law of armed conflict.

John Donvan: Thank you, Michael Hayden. Go ahead and take one more question. There is — on the far aisle, almost near the top. Yes. Up seven steps.

Female Speaker: Thank you. I think my question is for General Hayden. You and your partner have admitted that mistakes are sometimes made as to who does get picked up as a terrorist. In the civilian justice system, we say it’s something of a cliché, that it’s better for 100 guilty men to walk free than to convict an innocent man unjustly. What’s your calculation in the war on terror? How many non-terrorists can be rendered off the streets of Toronto or Amsterdam to make it okay?

Michael Hayden: Obviously there’s no precise answer to the question. We do the very best we can. And we review our data constantly. As I mentioned, to David’s point — and he’s nodding in agreement because he’s familiar with the process — we have combatant status review teams even before we had the habeas process at Guantánamo. You go over the evidence routinely. It’s required by our regulations. It’s required by the regime that’s in place at Guantánamo. I hope the audience is not demanding 100 percent certitude and 100 percent perfection before your intelligence services or your military services can act in your defense.

John Donvan: And that concludes round two of our debate. We are about to hear closing statements from each debater. There will be two minutes, each. This is their last chance to change your mind. You will be asked to vote once again immediately after they speak and to pick the winner in this debate just a few minutes from now. Our motion is: “Treat terrorists like enemy combatants, not criminals.” And first, to summarize his position against the motion, Stephen Jones […]

Stephen Jones: As we have listened to the debate tonight, I think two or three issues have emerged sharply. The issue is not just about the treatment of individuals at Guantánamo Bay. The issue is larger and that is, what is the system we will use to adjudicate the guilt of those persons charged with crimes against the United States? And I say that the line is indivisible. By that I mean you cannot say, “We have one set of justice over here for these categories of crimes, that one rule of evidence, one rule of procedure, one rule of appellate practice, and over here we have an entirely different rule of evidence and a different procedure.” First, that leaves the intelligence community who are largely anonymous and many law enforcement officers and prosecutors unaccountable in the final analysis for the decision made. General Hayden has been very correct in telling you that there is not 100 percent perfection and there isn’t. After all, the 9/11 Commission in its report talked about the system was blinking red, so our intelligence and many of our law enforcement officials and indeed political leaders knew of the risks and did nothing.

In the final analysis, accountability for responsible decisions has to be made somewhere, political process, the legal process, something done openly, but that is not what the argument is made by our colleagues to our right. Their argument is trust us, trust us, we’ll get it right this time. Unfortunately history shows too many examples of not getting it right. That’s why we have the rule of law.

John Donvan: Thank you, Stephen Jones. […] Summarizing his position for this motion, Marc Thiessen […]

Marc Thiessen: We did get it right. In the period in the eight years before September 11th, 2001, al-Qaeda killed roughly 3,500 people in a series of attacks starting with the 1993 World Trade Center bombing, followed by the attack on our embassies in Kenya and Tanzania, followed by the attack on the USS Cole and culminating in September 11th, 2001. That was when we followed the law enforcement approach to interrogation. During that period of time, we prosecuted 29 people in connection with those attacks. If you think that is an approach — and we didn’t get the intelligence we needed to stop the September 11th terrorist attacks, in the period that followed we have not been hit again.

So it’s a very stark question; do you want to go back to the approach when al-Qaeda was mounting attacks of increasingly lethality, or do you want to follow the approach that we took which has kept this country safe for almost a decade? Our opponents are trying to wiggle out of it. They want you to focus you on waterboarding and the interrogation techniques. If they don’t like the techniques we used, there’s a wide line between waterboarding on one hand and “You have the right to remain silent,” lawful techniques that can be used short of that.

Choose other techniques, but what their position holds, if you hold that a terrorist is a criminal and not an enemy combatant, we cannot kill them using predator drones outside of the war zones of Iraq and Afghanistan. We cannot kill them in Pakistan. We cannot kill them in Yemen. We cannot kill them in East Africa. There are terrorists plotting to attack us right now that Barack Obama would not be allowed to kill. And second, we will not be able to interrogate them effectively as we found out after the Christmas Day bomber, as we found out with the Times Square bomber. So this is a very stark question. Do you want to go back to the approach that led to 3,500 American people getting killed and we were not able to get the intelligence to stop the attack? Or do you want to follow the approach that kept our country safe for almost a decade?

John Donvan: Thank you, Marc Thiessen. […] Summarizing his position against this motion, David Frakt […]

David Frakt: Our opponents seem to have valued American lives more than the lives of anybody else. They seem to forget about Madrid, about London, about Bali. The terrorists have not stopped. But simply because we’ve tightened security domestically and presented easy targets overseas, the action is moved overseas. We are not safer today than we were on September 12th, 2001. We are in a worse position because of our actions in the war on terror, our lawlessness and our abandonment of the rule of law. General Hayden talks a lot about the rule of law and serving it but that was not really our experience under the prior administration. Let me tell you about my personal experience. I was assigned to represent two detainees in Guantánamo.

Both had been determined to be enemy combatants in the combatant status tribunals that you heard about. But in fact, neither was an enemy combatant. One, Mr. Ali Hamza al-Bahlul, was, in fact, a terrorist. He was an al-Qaeda insider. He was a media advisor and created propaganda for al-Qaeda. He should have been tried in federal court for material support to terrorism. He was not an operational terrorist. He did not kill any Americans. He did not plot any attacks on Americans. The other [Mohamed Jawad] was neither an enemy combatant nor a terrorist and, in fact, he was a child who had been tortured into confessing to something he didn’t do. A lot of mistakes were made. The rule of law was not observed.

Over time, with the intervention of the Supreme Court, we gradually brought the pendulum back to something approaching equilibrium. But they’re advocating going back. I’m advocating going forward. So we urge you to vote against the proposition. Thank you.

John Donvan: Thank you, David Frakt. […] To summarize for the motion, our final speaker, Michael Hayden […]

Michael Hayden: As I predicted and somewhat feared, we’ve sidled into a discussion as to whether or not you are for or against the rule of law. I warned you that that was not the issue here, that there is plenty of law with the laws of conflict to govern our behavior and the American armed forces, the American intelligence community are quite capable and competent to function within that framework. I was taken aback a little bit by saying that the intelligence community is not accountable. Clearly Stephen has never been in front of the Senate Select Committee or the House Permanent Select Committee on Intelligence and to go through the openness that we share within the confines of those committees.

I was struck as Stephen said the system was blinking red and I think he was alleging some sort of incompetence. The attack still happened in the summer — in September of 2001. The attack still happened not because the intelligence was wanting — although certainly you can always use better intelligence. The act took place because the model we were using, the model in which we placed the intelligence which was a law enforcement model. [Editor’s Note: I don’t think anyone would agree with this statement who has read Lawrence Wright’s The Looming Tower, with its vivid explanation of how turf wars between the CIA — in particular — and the FBI prevented both sides from putting together the jigsaw pieces both possessed, which, if both sides had cooperated, would probably have prevented the 9/11 attacks].

The difference between now and 9/11 is that we are a nation at war and we are taking the fight to the enemy. There’s an office in CIA, the most operational office that we have on our Langley campus, responsible for many of the things the current administration is taking credit for. You walk into that office, you hit a bulkhead, a wall, and there’s a sign there saying today’s date and you walk by it, very often don’t recognize it but every now and again you catch it. It actually says today’s date is September 12th, 2001. It’s been up there for over eight years. When I was director and got in a car and drove down G.W. Parkway to my home, it didn’t feel like September 12th. It felt a lot like September 10th. That’s an attitude that we adopt at our peril. Thank you.

John Donvan: Thank you, Michael. That concludes our closing statements. And now it’s time to learn which side argued best. I’m going to ask you, once again, to vote. […]

All right. I now have the final results. We had you vote twice, one before the debate and once again at the conclusion. We asked you where you stood on our motion, which is: “Treat terrorists like enemy combatants, not criminals.” The team that has changed the most minds, that has moved the most percentage points will be declared our winner. Here is how it went.

Before the debate, 33 percent of you were for the motion, 32 percent were against, 35 percent were undecided. After the debate, 39 percent for, 55 percent against, 6 percent undecided. The side against the motion wins.

Our congratulations to them. Thank you from me, John Donvan and Intelligence Squared U.S.

Andy, I read these two through very closely. I agree with your comments. There is one area with which I am still uncertain. That is the way in which the prisoner’s status is determined and how soon this is supposed to happen (if the prisoner is a Prisoner of War). I consulted ‘Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949’:http://www.icrc.org/ihl.nsf/COM/375-590008?OpenDocument

I know their status is supposed to be determined within a short time, according to ICRC protocols — not some years later by means of some dodgy tribunal. I hope David Frakt can clarify this.

I’ve written about this, Willy. This was how I discussed the tribunals at Guantanamo in an interview in 2008 with Lt. Col. Stephen Abraham, who exposed how corrupt they were in a statement submitted to the Supreme Court in 2007:

I understand from my sustained study of the prisoners’ stories for The Guantánamo Files that it is valid to look at the tribunals as a pale and mocking echo of the Article 5 battlefield tribunals that are supposed to take place close to the time and place of capture, according to the Geneva Conventions, so that people who know whether those captured are farmers or soldiers can come and give evidence, and say, “This is a farmer, you’ve got the wrong man.” This, of course, is what happened in all US wars since the Second World War, including “Operation Desert Storm.”

So the tribunals are a horribly dysfunctional echo of the battlefield tribunals, in which everything was expedited, and requests for outside witnesses, which were supposed to be part of the architecture of the tribunals, were never fulfilled — not a single outside witness was called — and my feeling is that no depth was really required in the tribunals because, as you’ve said, the impression that you came away with, having undergone this six-month experience, was that it was designed to rubber-stamp the prisoners’ prior designation as “enemy combatants.”

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Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer. Email Andy Worthington